Scottish Court of Session Decisions

Sequel of the case reported ante XIII., 296, which see.

Against the conclusions of this action, as directed against himself, Sir John Sinclair, in whose stead the defender, Sir George Sinclair, was sisted, had stated, inter alia, the following defences (1st and 4th):—”That the pursuer has no title to found upon the deed of 1719, or to make any claim whatever against the present defender, founded on that deed.”—”That whatever was the nature of the warrandice and relief granted to Francis Sinclair of Stircock by Lord Glenorchy, it has not been transmitted to, and does not subsist in the person of the pursuer; and far less has he any right to found on the obligations come under by the defender's ancestors in the disposition of the earldom of Caithness, to which he does not pretend he has acquired right by assignation or otherwise.”

The Lord Ordinary (Mackenzie), in his interlocutor, which was adhered to by the Court, “sustained the title of the pursuer,” finding the Marquis of Breadalbane bound to relieve him of certain payments of stipend, &c.; “and in respect to the liability of the defender, Sir John Sinclair appointed the parties to be farther heard.”

Thereafter, an action of relief having in the mean-time been brought by the Marquis of Breadalbane's trustees against Sir John Sinclair (reported of this date), Sir George Sinclair (as in place of his father), on the original process returning to the Outer House, applied to be assoilzied from the conclusions thereof.

The Lord Ordinary pronounced the following interlocutor, with the subjoined note; ^*—“Finds, that, however proper it might be to call Sir

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* “It seems to be quite clear, that every thing was left open by the judgments of the Court as to the liability of Sir John Sinclair, or the title of the pursuer to insist against him. Indeed, it is clear enough that even Lord Mackenzie had no intention, by sustaining the pursuer's title, to decide any thing as to the effect of the deed 1719, or Sir John Sinclair's condition under it. But, at any rate, the judgments of the Court leave that whole question open.

“The contract and disposition of 1719, between Lord Breadalbane and John Sinclair of Ulbster, was clearly an onerous contract of sale. Whatever obligations it laid on Mr John and his representatives, must be fulfilled to Lord Breadalbane or his representatives, or any one to whom he or they might have assigned the right under it. But what title the pursuer, not representing Lonl Breadalbane, and holding no assignment from him or any of his successors, can have to found on the stipulations of that contract, the Lord Ordinary is unable to see. The case of Nisbett v. Halkett ( 1 Shaw, 13, 497) was referred to. But Sir Charles Halkett was found liable in that case, on the express ground, that he represented the granter of the obligation. What affinity that can have to the case of an onerous purchaser not at all representing his author, is not obvious. If that had been Sir Charles's position, the case could not have borne to be stated.

“There is really no question about real burden here. Sir George Sinclair confessedly represents John Sinclair of Ulbster, and whatever obligations he was bound to fulfil, Sir George must fulfil. But he came under no obligation to Mr Horne's author or predecessor, and therefore no decree at his instance, can pass against him, whatever may be his obligation to those in the right of his own author.

“The pursuer's counsel suggested, that, if the obligation of relief maintained by Lord Breadalbane was made a real burden in his favour on the conveyance to John Sinclair, it accrued to the right previously given to Sinclair of Stircock in 1715. The Lord Ordinary cannot assent to that doctrine. Lord Breadalbane had come under no obligation to create any such real burden on other lands. What he stipulated with Sinclair of Ulbster was for his own security only, and he might have discharged it all at any time without consulting Sinclair of Stircock. In short, there was no priority or relation between the disponee in the deed 1715, and the dispones in the deed 1719; and the Lord Ordinary cannot see how the one can have a title, in virtue of his disposition simply to found a demand on any of the conditions of the other's purchased right.

“It is true, certainly, that the trustees of Lord Breadalbane having been found liable to a certain extent in relief to the pursuer, in virtue of the stipulations of the contract 1715, maintain that they have a claim of relief against Sir George Sinclair to the same extent; and if this is a well-founded claim, it may be thought that Sir George Sinclair has no material interest to oppose the pursuer's demand. But a party has always an interest not to answer to one to whom he is not liable; and there may be important differences in the effect of the liability the one way or the other. The question between the trustees of Breadalbane and Sir George Sinclair must be disposed of in the proper process, and it may be, that even the question of prescription may not be exactly the same to all effects, in regard to the obligations of the contract 1719, with that which the Court have already decided, as to those of the contract 1715. But however this may at last be thought to stand, the Lord Ordinary can see no room for doubt, that the defender is entitled to have his rights and obligations settled with his proper party, and to object to the title of the pursuer, to obtain any decree against him.

“The Court having reserved all questions of expenses, when the cause was before them, and that matter not having been yet brought generally before the Lord Ordinary, he has not thought it proper to make any partial deliverance on the subject, and therefore he abstains from giving decree of absolvitor, though prepared to do so.”

John Sinclair for his interest as a defender to this action, in respect of a claim of relief supposed to be competent against him by the other defenders, the trustees of the Earl of Breadalbane, the pursuer has no title to insist for any decree in this action against the said Sir George Sinclair; sustains the first and fourth defences against the demand for such a decree. But, before pronouncing any decree of absolvitor, appoints the cause to be enrolled, in order that the whole questions of expenses, as reserved by the interlocutor of the Court, may be disposed of at once.”

The pursuer reclaimed, praying to have Sir George Sinclair found liable to the pursuer under the deed of 1719, reserving the quantum of such liability to be adjusted in the course of the process.